Transfer of possession without the transfer of holding does not constitute a sale under Section 164 of the U.P. Zamindari Abolition and Land Reforms Act.

JUDGMENT :

Irshad Ali, J.

1. Heard Sri Virendra Misra, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the respondent - State.

2. By means of present writ petition, the petitioner is challenging the order dated 14.05.2003 passed by Commissioner, Faizabad Division, Faizabad in revision No.73 Barabanki under Section 56 of Indian Stamp Act; Pawan Kumar Agrawal Vs. State of U.P. and others and order dated 05.03.2001 passed by Additional District Magistrate, (Finance and Revenue) (ADM - F&R), Barabanki in case No.80/2000-01 under Section 47A/33 Indian Stamp Act; State of U.P. Vs. Pawan Kumar Agrawal.

3. Factual matrix of the case is that the petitioner took a piece of land area measuring 130 Ft. in east to west side and 350 Ft. in north-south length of Gata No.171 and 173 situated at revenue village Satrahi Pargana and Tehsil Haidergarh, District Barabanki. A notice was issued by the Collector, Stamps, Barabanki, which was replied by the petitioner on 14.09.1998 and specifically denied the allegations and justified the assessment of stamps of instrument of tenancy of land in question.

4. The Tehsildar, Haidergarh prepared a report and found a deficiency of stamp of value of Rs.1200/-. The ADM (F&R)/Collector Stamps, Barabanki discarded the explanation and response submitted by the petitioner on 14.09.1998 and also ignored the report submitted by the Tehsildar without making any finding and observation and decided the case finally on 09.06.1999.

5. The Tehsildar, without assigning any reason, observation and finding decided the restoration application filed by the petitioner vide order dated 05.03.2001. Against the order passed by ADM (F&R), the petitioner preferred a revision against order dated 05.03.2001, which was also dismissed by the Commissioner without assigning any reason and without giving any finding on the report of the Tehsildar and explanation of the petitioner. Hence, the present writ petition has been filed before this Court.

6. Submission of learned counsel for the petitioner is that in view of Section 164, U.P. Zamindari Abolition and Land Reforms Act (U.P. ZA&LR Act), the agreement in question would be deemed to be a transfer inasmuch as it was admitted therein that possession over the property in suit had been delivered to the respondents in pursuance of the said agreement. Since possession over the property had been transferred to the respondents in pursuance of the said agreement, the agreement was for all purposes a sale of the property. This submission also is on the face of it untenable. Section 164, U.P. ZA&LR Act deals with transfer with possession by a bhumidhar. It contemplates transfer of any holding or any part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money referred to in the said section. On the face of it for the application of Section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Since an agreement of sale does not have the effect of transferring any holding or part thereof even if possession was transferred of the holding in pursuance of the said agreement, it cannot be said that the agreement amounted to a sale under Section 164. Section 164 contemplates transfer by a bhumidhar. In support of his submission, he placed reliance upon a judgment in the case of Mohammad Fasih, Appellant Vs. Munir Khan and another, respondents; 1987 All. L.J. 617, paragraph 16.

7. Next submission of learned couns